Can I show video simulation evidence to a jury? Explained by Fairfax criminal lawyer

Virginia Rules of Evidence Video Simulation explained by fairfax criminal attorneys
This article explains the general rules when it comes to admissibility of “video simulations”

Fairfax Criminal Lawyer explains law: video simulations, purported to depict a version of an accident, incident, or event

While each case differs in terms of complexity, one question to note by our Fairfax criminal lawyer arises from time to time concerns the use of video simulation evidence. This article is not intended to address actual video evidence – such as dash camera footage in a DUI or DWI case – rather, video simulation evidence.

For example, in the event of a charge or lawsuit stemming from a motor vehicle accident, one or both sides may wish to help the jury understand what is alleged to have happened. Can the prosecutor of defense show the jury a video simulation (not an actual video of the accident) that purports to depict what happened, according to their version of events? The answer is, and as explained by our Fairfax criminal lawyer, is…maybe.

There are several rules and legal theories to consider. The main question is: is a video simulation of an event (accident, assault, etc.,) proposed to be used by a plaintiff, prosecutor, or defense attorney admissible in Virginia, in order to explain to the jury their version of the facts ? A secondary question is, what is the purpose of the video simulation evidence? Is it offered as a version of fact, or is it meant to help the jury understand a hypothetical allegation?

First: What is video simulation evidence?

Second: What are the rules and case law governing admissibility of video simulation evidence?

Fairfax criminal lawyer explains: What is video simulation evidence?

Video simulation evidence could theoretically be relevant in a wide variety of cases. Admissibility is another question.

In one traffic accident case, several people were killed when a train collided with their vehicle. One of the main issues for the jury to decide was whether the driver drove around the cross-gate, or, if the cross-gate failed to lower. The car was struck by the train and was discovered by a authorities hundreds of meters from the collision site. Based on the angle of the vehicle and how it was apparently pushed down the track, the case required expert testimony and one party sought to introduce simulation evidence of what allegedly occurred.

Tip: video simulation can be helpful to explain to a jury what may have happened. The problem with video simulation evidence is that it can also be highly prejudicial, or, misleading to the jury, and courts take this concern seriously!

Another example: in a criminal prosecution or a civil wrongful death suit, for example, one side may seek to introduce a video simulation of a stabbing. Depending on the organs damaged, the angle or force of the infliction may be a major issue for the jury to assess.

The bottom line according to our Fairfax Criminal Lawyer: when, if ever, is video simulation evidence admissible (allowable) for one side of either a criminal case or civil lawsuit, to show a jury?

Rules and case-law governing admissibility of video simulation evidence

Can the proponent (party hoping to show the video simulation) lay a proper foundation?

To “authenticate” means to convince the court the evidence is authentic. “Demonstrative” evidence means evidence that demonstrates something.

In order to authenticate a demonstrative exhibit, the proponent must make a showing of personal knowledge about the creation of the exhibit. Needham v. White Laboratories, Inc., 639 F.2d 394 at 403 (7th Cir. 1981) (“Before a summary is admitted, the proponent must lay a proper foundation as to the admissibility of the material that is summarized and show that the summary is accurate.”); see also Virginia Rules of Evidence, 2:602.  Generally, the exhibit must be brought forth by way of “the witness who supervised its preparation.” United States v. Bray, 139 F.3d 1104, 1110 (6th Cir. 1998).

In other words, our Fairfax criminal lawyer opines that a prosecutor who wants to show a jury a video simulation of what it would look like to stab a person should have also prepared or directed the production of the video, based upon the data/reports/statements provided to him or her, and based specifically from the incident in question.

Laying a Foundation

The first thing when it comes to admissibility of evidence is whether or not the proponent (the side hoping to show it to the judge or jury as evidence) can “lay a foundation.” Another word for this is “authentication.” For example, if an attorney wishes to show a random picture to a judge or jury, how is the court supposed to know whether or not the picture depicts what it is supposedly offered to show? Personal knowledge is one way — when it comes to photographs — but what about video simulation?

According to our Fairfax criminal lawyer, video simulations are generally offered by a party along with expert testimony who can properly explain what it shows to a jury or judge. An expert witness is a witness who does not possess personal knowledge of the event or accident, but who has the ability and expertise to render an opinion that would be helpful to the trier of fact (the judge or jury).

If an expert is “qualified,” he or she may, in theory, produce a video simulation of an event. For example, if an expert in the field of accident reconstruction studies the scene or related data from an accident scene, he or she could potentially direct or produce a video to show the jury his or her opinion as to what happened. Assuming he or she did prepare the video simulation, the next question is whether or not it is potentially misleading (more on that below).

As you can probably infer, there are multiple hurdles: first, an expert must be “qualified” to testify as an expert (which is the subject of another article). Second, the expert must have personal knowledge or in essence, be responsible and involved with the preparation, or creation of the video simulation. There is yet another hurdle…

Would the video simulation would mislead the jury?

Recognizing the potential danger, the Tenth Circuit advised courts should “carefully and meticulously examine proposed animation evidence” to ensure that it is truly relevant and not unduly prejudicial.  Robinson v. Missouri Pacific R. Co., 16 F.3d 1083 (10th Cir. 1994).

Would the video simulation be more prejudicial than probative?

The Federal Rules of Evidence (403) allows parties to object and therefore, seek to exclude evidence, if it poses a risk of being more prejudicial than probative. “Prejudicial” means, basically unfairly harmful or misleading, or to have a tendency to be unjustly misunderstood. “Probative” means helpful or relevant.

Virginia Rules of Evidence 2:403 is extremely important as it affords the judge discretion to evaluate whether the probative value of the offered evidence is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

As a result of its potential theatrical power, judges should carefully examine any potential video simulation for not only proper foundation, but potential for undue prejudice. Generally, the trial judge should review the video outside of the jury’s view. Brandt v. French, 638 F.2d 209, 212 (10th Cir. 1981).

What if the proponent does lay a proper foundation, and the trial judge rules that it is not more prejudicial than probative, nor potentially misleading?

The final consideration when it comes to video simulations is a limiting instruction. What is a limiting instruction? Our Fairfax criminal lawyer describes a limiting instruction as follows: A limiting instruction is a way in which the judge can advise a jury that proposed evidence should be observed in a theoretical or perhaps hypothetical manner.

In one seminal case, the Court held that courts allowing such video simulation evidence must make it “clear to the jury that even though there is not similarity to the events of the accident that the information is received on a theoretical basis for the limited purpose for which it is offered.”). Gilbert v. Cosco, Inc., 989 F.2d 399, 402 (10th Cir. 1993).

In Conclusion: Final word by our Fairfax Criminal Lawyer

Our Fairfax criminal lawyer sums up his views on admissibility of video simulation evidence as follows:

Video simulation evidence is admissible, or otherwise may be played for a jury if certain requirements are met. First, the video simulation must not be more prejudicial than probative, and it must not be likely to mislead the jury. Second, video simulation evidence must be prepared by an expert witness. Third, the expert witness must be qualified as indeed being an expert in his or her respective field. Finally, if the trial judge believes the video simulation passes these tests, then the jury must be instructed not to take the video simulation as precise evidence as to what occurred, but rather, a theoretical or hypothetical scenario suggested by one party.

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.


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